Jones v. Com., Pennsylvania Bd. of Probation and Parole

• Decision Date: 07 August 1979
• Citation: 44 Pa.Cmwlth. 610,404 A.2d 755
• Parties: George JONES, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 755

404 A.2d 755

44 Pa.Cmwlth. 610

George JONES, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania Submitted on Briefs.

Decided Aug. 7, 1979.

George Jones in pro. per.

Robert A. Greevy, Asst. Atty. Gen., Pennsylvania Bd. of Probation and Parole, Harrisburg, for respondent.

Before BOWMAN, President Judge, and CRUMLISH, Jr., WILKINSON, MENCER, ROGERS, BLATT, DiSALLE, CRAIG and MacPHAIL, JJ.

CRAIG, Judge.

Petitioner George Jones' Petition for Review against the Pennsylvania Board of Probation and Parole (Board) is before us for consideration of the cross-motions for summary judgment filed by both petitioner and the Board.

An Allegheny County judge sentenced petitioner, in 1973, to a term ultimately set at 21/2 to 5 years, effective January 27, 1974, with a maximum expiration date being January 27, 1979.

On July 27, 1976, the expiration date of the minimum sentence, petitioner was actually released on parole from the State Correctional Institution at Pittsburgh.

On January 6, 1977, while on parole, petitioner was arrested upon new charges of armed robbery and other offenses and incarcerated in the Allegheny County Jail. On the next day, January 7, the Board lodged a parole violation warrant against petitioner at that jail. Petitioner, according to his averment, satisfied bail as to the new charges but remained in custody under the Board warrant.

After an October, 1977 trial in Allegheny County, petitioner was sentenced December 15, 1977 to three consecutive terms of 10 to 20 years on three counts of armed robbery and to various concurrent terms for other offenses.

On December 22, 1977, petitioner was transferred from the Allegheny County Jail and entered into the State Correctional Institution at Pittsburgh under the newly-imposed sentence. On February 2, 1978, petitioner was transferred to the State Correctional Institution at Graterford and there entered as a parole violator under his original sentence.

During the period between February 2, 1978 and April, 1978, the Board three times scheduled petitioner for a final parole violation hearing, and each time the scheduled hearing was postponed because of the transfer of petitioner from Graterford to Allegheny County Jail and back to Graterford.

Finally on April 6, 1978, when the hearing was again set, petitioner's counsel asked for a continuance and, on the rescheduled date of June 8, 1978, again requested a continuance. The full Board revocation hearing was held July 13, 1978, pursuant to which the Board took action to recommit petitioner to serve his unexpired original term, extending his maximum expiration date under the original sentence to July 7, 1979.

Petitioner raises four issues: (1) The Board's parole violation warrant, lodged against petitioner as a detainer, deprived him of due process and the right to be free on bail without a hearing; (2) the Board violated the law by failing to afford petitioner a timely revocation hearing; (3) the Board violated the law by entering petitioner at the State Correctional Institution at Pittsburgh under the new sentence during the period of December 22, 1977 to February 6, 1978; and (4) the Board's recomputation of the expiration date of petitioner's original sentence, deleting credit for time at liberty on parole, was in violation of the law.

As to petitioner's initial claim, that the Board's parole violation warrant deprived him of due process and the right to be free on bail without a hearing, we note that the record shows that petitioner signed a waiver of preliminary revocation hearing. Moreover, the continuation of an arrested parolee under pre-trial detention has been constitutionally approved by the United States Supreme Court. Morrissey v. Brewer, 408 U.S. 471, 487, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

With respect to the second question, under the Board's regulations at 37 Pa. Code § 71.4, in accordance with United States ex rel. Burgess v. Lindsey, 395 F.Supp. 404 (E.D. Pa. 1975), the parole violation hearing must be held within 120 days (not 30 days, as petitioner contends) from the date the Board receives official notification of the new conviction, except that, where the parolee is confined in a county correctional institution, the final hearing must be held within 120 days after the official verification to the Board of the return of the parolee to a state correctional facility.

Therefore, the 120-day period did not begin to run until petitioner was transferred to the State Correctional Institution at Pittsburgh on December 22, 1977, having been confined in the county jail before that date. Despite the three-time postponement of hearings scheduled during February and March because of transfers between institutions, the revocation hearing was definitely scheduled April 6, 1978, less than 120 days after December 22, 1977. The two...